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Trump wants to make asylum seekers’ stay in the US harder — and shorter

A memo outlines the next steps in the administration’s crackdown — but they aren’t happening just yet.

After Detention And Release, Undocumented Mother And Child Wait For Day In Immigration Court
This family is currently waiting for the outcome of their asylum case — a process that takes a long time, as applicants and lawyers put together evidence and judges work through backlogs. Trump has instructed federal agencies to come up with regulations that would push cases through faster — and prohibit applicants from working legally in the US before their applications are approved.
John Moore/Getty Images

President Trump has unveiled the next phase of his asylum crackdown: a new wave of regulations that would force asylum seekers’ cases through much faster and make it harder for asylum seekers to afford to apply and live in the US in the meantime.

On Monday night, Trump issued a “presidential memorandum” directing the departments of Homeland Security and Justice to take “all appropriate actions” to propose a series of regulations within 90 days. He asked for proposals to charge a fee for asylum applications, stop issuing work permits to asylum seekers until their applications have been approved, shunt asylum seekers into limited court proceedings to judge their applications, and require all asylum cases to be wrapped up in 180 days.

The “all appropriate actions” language gives some wiggle room to the agencies, so it’s possible not all of these will be introduced within 90 days. Once introduced, each of those regulations would have to go through the standard regulatory process, including a 90-day public comment period and review of the comments before a final regulation is published. And at this point, it’s fair to assume there will be a lawsuit over any new immigration crackdown proposed by the Trump administration.

So Monday night’s memo doesn’t by itself change anything on the ground. (It wasn’t even legally necessary; they could have just drafted the regulations without a presidential memo.) What it does is outline the next frontier of the Trump administration’s asylum crackdown: Having worked to stop immigrants from coming to seek asylum, the administration is now doing more to get them out of the asylum system as quickly as possible — knowing that most asylum applicants don’t end up winning their cases.

If all of these regulations go through — which would likely take years — it will make many asylum seekers’ stay in the US harder and shorter, on the theory that only the truly persecuted will be willing to take the risk of coming.

What Trump wants his executive branch to do

The memo identifies four regulations, two of which would be under the jurisdiction of US Citizenship and Immigration Services, which handles applications for legal status (including asylum), and two of which would be issued by the Department of Justice, which handles the immigration court system that adjudicates asylum claims for immigrants who enter the US without papers.

Charge a fee for asylum applications. Currently, it’s free to apply for asylum — something the Trump administration believes encourages migrants to file frivolous asylum applications (though there’s little evidence of immigrants deliberately applying for asylum even though they know they don’t qualify). But US law does allow the government to charge an application fee. And the Department of Homeland Security has reportedly been working for months on a regulation to do just that.

The impact of this regulation depends greatly on the size of the fee: Many immigration applications cost hundreds of dollars, and a fee of that size would make it much harder for many of the Central American immigrants coming to the US to apply. It also depends on whether there would be waivers, as there are for many other immigration applications, for “financial hardship.” Including a waiver would make the crackdown mostly toothless; excluding it might make the regulation vulnerable to getting struck down in court.

Withhold work permits until an asylum application is approved. Under current federal regulation, an asylum seeker can apply for a work permit five months (150 days) after sending in her full asylum application. The work permit isn’t valid after her asylum claim is denied, and she has to demonstrate that she’s still seeking asylum if she tries to get it renewed. But given the length of time that immigrants who aren’t in detention have to wait for resolution of their asylum claims, that could be years.

The administration believes that work permits are a “pull factor” encouraging asylum seekers to come. That’s probably true, though it doesn’t necessarily mean they’re not also victims of persecution.

It’s already hard for asylum seekers to afford to live in the US (much less get a lawyer for their asylum case) in the months before they’re allowed to apply for a work permit. Keeping asylum seekers from working legally until their applications are approved would make it that much harder to live in the US — a hardship that wouldn’t discriminate between people with strong asylum claims and people with weak ones. And, of course, having to pay a fee up front for an asylum application and then wait months without being able to take a legal job would exacerbate the problem.

Adjudicate all asylum cases within six months. Right now, immigration judges are technically required to issue rulings on all asylum applications they get within one year. That’s much faster than most immigration cases are actually getting adjudicated in the backlogged court system right now.

The Trump administration has stressed to judges that completing asylum cases on time needs to be a priority, and some judges have reshuffled their dockets accordingly. Lawyers for asylum seekers are already worried that this will get in the way of them putting together the best possible case, since asylum cases are often very evidence-intensive: It can take a lot of documentation to demonstrate a credible and specific threat and identify membership in a persecuted group. As a result, other cases have gotten pushed back even further.

Right now, a majority of asylum seekers who come to the US without papers don’t ultimately win their cases. But after they’ve been in the US for years, it’s less likely that they’ll leave after being ordered deported, and ICE hasn’t shown an ability to track down asylum seekers with deportation orders. By forcing an up-or-down decision on their asylum applications within six months, Trump would make it more likely that more asylum seekers lose their cases and easier for ICE to know when to show up at an immigration courtroom and pick up an immigrant who’s newly been ordered deported.

A separate “asylum only” docket. Right now, once an asylum seeker is in immigration court, they can ask the judge to consider them for any form of legal status they feel they qualify for. And some of them do get other forms of legal status, or have their cases closed by a judge without a removal order. (The statistic cited by the administration that only 15 to 20 percent of Central American asylum seekers ultimately get asylum is misleading for exactly this reason: Some of the others are allowed to stay in the US by other means.)

However, federal regulations allow certain asylum seekers — like stowaways, and people from countries the US doesn’t require a visa to travel from legally — to be placed in a special “asylum only” proceeding that is just an up-or-down review of their asylum application. The Trump administration now wants to expand asylum-only proceedings for any immigrant who passes a screening interview and is eligible for asylum — and to put immigrants who pass their screening interviews but aren’t eligible for asylum into “withholding only” asylum proceedings, where they could be given withholding of removal (a quasi-asylum status that doesn’t give access to benefits or a work permit).

In conjunction with the 180-day clock regulation, this would probably lead the government to create a separate asylum-only docket and whip cases through it as quickly as possible. But it would add an additional step early in the process: assessing asylum eligibility (which is based on not just persecution but also absence of a criminal record and other factors) before adjudicating the actual claim, instead of considering both together.

The result would definitely be that more asylum seekers would be given removal orders — and it’s possible more of them would be prevented from applying for asylum at all.

None of this will be put into place for months or longer

What distinguishes these moves from the flashier parts of Trump’s asylum crackdown — from family separation to a possible expansion of military duties at the border — is that they can’t just be done by memo. They have to go through the regulatory process, which usually takes a couple of years from idea to completion.

We know the administration was already working on at least one of these regulations. But the memo doesn’t necessarily mean they’ll be able to work any faster, much less within 90 days.

Trump’s White House is already frustrated with the pace of regulation. White House adviser Stephen Miller is reportedly livid with the Department of Homeland Security for not doing more to expedite a regulation to deny visas to more immigrants on economic grounds (the “public charge” proposal), and a regulation to detain migrant families until their cases are completed, superseding a 2015 ruling under the 1997 Flores settlement that prevents ICE from detaining families for more than a limited period of time.

Both of those regulations have already been published as draft proposals, and the public comment periods closed late last year. But both received a large volume of comments — the “public charge” rule received more than 200,000 — and the agencies haven’t yet been able to work through the comments to finalize the rule.

Miller’s impatience is reportedly grounded in his desire for the inevitable lawsuits over the regulations to reach the Supreme Court (which he expects to side with Trump) before the 2020 election. But federal lawsuits take even longer than regulation does, and that timeline looks aggressive even for the regulations that have been published.

The regulations Trump just ordered, if the administration’s record is anything to go on, wouldn’t be fully adopted (with court challenges cleared away) until Trump’s second term.

So while writing the memo to order the regulations wasn’t necessary, it makes some sense. Trump is impatient, he hates being told he can’t do things just because he wants to, and he is in an ongoing rage over the number of families coming into the US without papers. The memo allows him to say that something is being done.

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